Cable Car Charters

CABLE CAR CHARTERS 927 Cable Car Advertisers, Inc., d/b/a Cable Car Char- ters and Freight Checkers, Clerical Employees & Helpers Local 856, International Brotherhood of Teamsters, AFL–CIO and Sheila Lambert. Cases 20–CA–25377 and 20–CA–25789 October 29, 2001 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN HURTGEN AND MEMBERS LIEBMAN AND WALSH On March 7, 2001, Administrative Law Judge Jay R. Pollack issued the attached supplemental decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed an answering brief. The Re- spondent filed a reply brief. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.1 The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings,2 and conclusions and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the rec- ommended Order of the administrative law judge and orders that the Respondent, Cable Car Advertisers, Inc., d/b/a Cable Car Charters, San Francisco, California, its officers, agents, successors, and assigns, shall make whole the employees named below by paying them the amounts set forth opposite their names, plus interest as prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987), accrued to the date of payment, minus tax withholdings required by Federal and State laws: Diana Miles $15,459.86 Kent Bishop 3,422.26 Robert Telles 5,092.31 William Trulock 26,118.71 Luis Recinos, Jr. 2,363.26 Douglas Horning 3,869.07 Carl Hovdey 397.75 Jon Palewicz 12,717.47 Sheila Lambert 2,055.00 Michelle Zimmerman 2,672.62 Fred McKenzie 5,905.73 1 Member Walsh did not participate in the decision on the merits. 2 The Respondent has excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an adminis- trative law judge’s credibility resolutions unless the clear preponder- ance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. Kohlee Gleffe 3,167.90 Michael Buckey 8,113.00 Randy Morrison 2,617.44 John Modica 1,903.65 Andrea Terhune 317.36 Susan Chan 249.15 Porfirio Coyoy 14,464.40 Rudy Galindo Ortiz3 1,970.63 Victoria Mazariegos 1,455.00 Mavillia Lillienthal 1,663.75 Mauricio Velasco 1,779.04 Gholamreza Radpay 7,985.25 John Mozol 15,718.45 TOTAL $141,479.06 Paula Katz, Esq., for the General Counsel. Kate Brooks Paul, Arnold Gridley, and Phillip A. Wright, Esqs., of San Francisco, California, for the Respondent. William Sokol, Esq., of Oakland, California, and Jonathan Palewicz, Esq., of San Francisco, California, for the Un- ion. Michael Buckey, of San Francisco, California, for Sheila Lam- bert. SUPPLEMENTAL DECISION STATEMENT OF THE CASE JAY R. POLLACK, Administrative Law Judge. I heard this case in trial at San Francisco, California, on various dates be- ginning April 4 and ending May 4, 2000. On November 21, 1996, the Board issued its Decision and Order (322 NLRB 554) finding that Respondent, Cable Car Advertisers, d/b/a Cable Car Charters, had violated Section 8(a)(1) and (3) of the Na- tional Labor Relations Act. The Board ordered, inter alia, that Respondent make whole certain employees for losses resulting from its unfair labor practices. Thereafter, on February 20, 1998, the United States Court of Appeals for the Ninth Circuit entered its judgment1 enforcing the Board’s Order. A contro- versy having arisen over the amount of backpay due under the terms of the Board’s Order, on January 13, 1999, the Regional Director for Region 20 of the Board issued a compliance speci- fication and notice of hearing. The specification was amended at the hearing. The issues presented for decision are: (1) whether Respon- dent complied with the Board’s Order prior to May 1999; (2) whether Respondent established that General Counsel’s back- pay formulas are unreasonable or arbitrary; and (3) whether Respondent proved any of its affirmative defenses. All parties have been afforded full opportunity to appear, to introduce relevant evidence, to examine and cross-examine witnesses, and to file briefs. On the entire record, from my observation of the demeanor of the witnesses, and having con- 3 Backpay for Rudy Galindo Ortiz shall be disbursed in accordance with the instructions set forth in fn. 10 of the judge’s recommended Order. 1 Ninth Circuit Nos. 97-70069, 97-70253, unpublished memorandum filed February 20, 1998. 336 NLRB No. 85 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 928 sidered the posthearing briefs of the parties, I make the follow- ing FINDINGS AND CONCLUSIONS I. THE UNDERLYING UNFAIR LABOR PRACTICES CASE Respondent operates motorized cable cars as shuttles, tours, and charters/promotions in San Francisco, California. At the time of the underlying unfair labor practices, the shuttles ran from Macy’s department store in Union Square to A. Sabella’s Restaurant in the Fisherman’s Wharf area. The tours were 1, 2, and 3 hours in San Francisco and Sausalito, California. At that time, the tour operation was conducted from curbside space at pier 41, about 3 blocks from A. Sabella’s Restaurant. In the spring of 1993, Respondent’s employees started orga- nizing with the Union. In June 1993, the Union was certified as the exclusive bargaining representative of a bargaining unit which included Respondent’s full-time and part-time tour driv- ers, promotion and shuttle drivers, ticket sellers, dispatchers, maintenance employees, and mechanics. The Union began a consumer boycott of Respondent on July 2, 1993. The parties agreed to a collective-bargaining agreement in December 1993. In its November 21, 1996 decision, the Board adopted the findings and conclusions of Administrative Law Judge William L. Schmidt that Respondent unlawfully: (1) reduced Sheila Lambert’s hours by discontinuing Lambert’s shuttle assign- ments on May 7, 1993; (2) discharged or laid off employees Susan Chan, Porfirio Coyoy, Carl Hovdey, John Mozol, Victo- ria Mazariegos, Gholamreza (Ray) Radpay, Rudy Ortiz, Mavilla Reyes, Andrea Terhune, and Maurico Velasco in June and July 1993; (3) constructively discharged Jonathan Palewicz in July 1993; (4) changed the schedule and reduced the work hours of Kent Bishop, Michael Buckey, Luis Recinos, Kohlee Gleffe, Douglas Horning, Fred McKenzie, Diana Miles, John Modica, Randy Morrison, William Segen, Robert Telles, Wil- liam Trulock, and Michelle Zimmerman beginning on June 15, 1993; and (5) closed its shuttle operations and/or tour opera- tions early, or did not operate them at all, on July 3, 4, 5, 9, 10, and 11, 1993. As a result, the Board Order requires Respondent to offer re- instatement to and make whole, Chan, Coyoy, Hovdey, Mozol, Mazariegos, Radpay, Ortiz, Reyes (now Lillienthal), Terhune, Velasco, and Palewicz. In addition, the Board ordered Respon- dent to make whole Bishop, Buckey, Gleffe, Horning, Lambert, Miles, McKenzie, Modica, Morrison, Recinos, Segen,2 Telles, Trulock, and Zimmerman for the reduction in their hours. Re- spondent was also ordered to make whole all employees who were affected by the early closing of its shuttle and tour service between July 3 and 11, 1993. Finally, the Board ordered Re- spondent to cease and desist from unlawfully reducing its em- ployees’ work hours. 2 No backpay was sought for Segen who did not cooperate in the compliance investigation. II. THE GENERAL COUNSEL’S GROSS BACKPAY FORMULAS Karen Thompson, board agent, testified that she prepared the compliance specifications. Amendments to the compliance specifications were necessary as Respondent provided addi- tional information at various times before and during the hear- ing. In identifying the beginning of each of the discriminatees’ backpay period, Thompson used the date of discrimination set forth in the Board’s decision. The backpay period for most employees did not terminate until May 29, 1999, when they were offered reinstatement or assured that scheduling would be done in accordance with the contract. Backpay for ticket sellers Buckey, Morrison, Modica, Terhune, and Chan, and for dis- patcher John Mozol was tolled on January 7, 1998, when Re- spondent ceased operating the tour and shuttle business, there- fore negating the need for ticket sellers and dispatchers. The General Counsel admits that the backpay period for Gleffe ended on October 25, 1995, and that the backpay period for Lillienthal ended on July 26, 1994. The collective-bargaining agreement, which went into effect in January 1994, contained seniority provisions and bidding procedures that had not previously existed. Thus, Thompson could not use the same assumptions and gross backpay formu- las for calculating the number of hours claimants would have worked during the entire backpay period absent the discrimina- tion. Instead Thompson developed four gross backpay formu- las (which will be discussed below). In each formula, she cal- culated gross backpay by multiplying the average hourly wage rate by the number of hours she calculated the claimants would have worked each quarter. A. Wage Rates Respondent did not have records showing the claimants wage rates. Thompson used the 1993 payroll records to calcu- late the average 1993 hourly wage rate for each claimant, divid- ing the total number of hours each worked into their 1993 gross wages.3 By using the gross wages, which included various tips and gratuities paid to the drivers and commissions paid to some of the ticket sellers, this formula attempted to make the claim- ants whole for all moneys they would have earned absent the discrimination. Thompson used the same wage rate during the entire backpay period because wages were not increased under the collective-bargaining agreement. B. Gross Backpay Formula for Drivers, Ticket Sellers, and the Mechanic for 1993 For the drivers, ticket sellers, and the mechanic in 1993, Thompson used a formula based on a proportional share of the hours worked in 1992.4 Backpay for most employees began in June or July 1993. Thompson testified that she thought the best 3 Carl Hovdey did not work for Respondent in 1993. Thompson used Hovdey’s 1992 wage rate of $11 per hour in calculating Hovdey’s gross backpay. 4 Thompson did not use a projection of the early 1993 earnings be- cause Respondent’s business is seasonal and the early months of 1993 did not include the busy tourist season. CABLE CAR CHARTERS 929 approximation of the hours that the claimants would have worked in the second half of 1993, absent the discrimination, was based on the hours they had worked in 1992. Because Respondent did not have any payroll records or other records showing the employees’ 1992 hours on a biweekly or quarterly basis, Thompson used a summary showing the total 1992 hours worked by each employee. Using the summary of 1992 hours, Thompson then created separate charts for drivers, ticket sellers, and the mechanic. For each classification, she totaled up the number of hours worked by all employees in that classification in 1992. She then di- vided the number of hours each claimant worked in 1992 into the total number of hours worked by all employees in that clas- sification in 1992. This resulted in an individual proportion of the total hours that each claimant worked in 1992, such as 3 percent, 5 percent, etc. For employees who had not worked all of 1992, Thompson took an average of the number of hours they had worked and projected that number over the entire year. Using the resultant total, Thompson came up with a proportion that each claimant would have worked in 1992, if employed the entire year. Next, Thompson used Respondent’s 1993 payroll records to total the 1993 hours actually worked in each job classification, by all drivers, tickets sellers, and mechanics. Then, again working by classification, she took the proportion of 1992 hours each employee worked and multiplied that percentage by the total number of hours worked by all employees in that clas- sification in 1993. Using this proportional formula, Thompson calculated the total number of hours each claimant would have worked in 1993, absent the discrimination against them. Thompson then deducted the hours that any claimant had worked in 1993 from the total hours he or she would have worked absent the discrimination. This total gave Thompson the number of hours for calculating gross backpay for each employee in 1993. C. Gross Backpay Formula for the Maintenance (Barn) Employees in 1993 The Board found that Maintenance (barn) Supervisors Hoa Van and Ty Van worked a substantial amount of overtime after the five maintenance employees were laid off in July 1993, and that an unidentified couple was observed performing the work of the maintenance employees. Although Thompson requested a breakdown of the hours spent by the Vans doing bargaining unit work, Respondent did not provide such information. Fur- ther, Thompson could not obtain the information from Respon- dent’s payroll records. As a result, the payroll records did not reflect the total hours worked by maintenance employees for gross backpay. Thus, Thompson could not use the same for- mula for the maintenance employees as she had used for the drivers, ticket sellers, and mechanic. For the maintenance em- ployees, Thompson created a backpay formula based on the assumption that the maintenance employees would have worked the same hours in 1993, as they had worked in 1992. After Thompson allocated 1993 hours to each maintenance employee, she deducted the actual number of hours that each had worked. She then divided the difference between the two quarters in the 1993 backpay period. For employee Mauricio Velasco,5 who had not worked in 1992, Thompson used an average number of the hours he had worked each pay period in 1993 until his unlawful layoff in the third quarter of 1993, and then subtracted the number of hours he worked.6 D. Gross Backpay Formula for Drivers, Tickets Sellers, and Maintenance Employees after January 1994 As stated above, on January 1, 1994, the new collective- bargaining agreement went into effect with new seniority and bidding provisions. Thus, the proportional formula used for 1993 could not be used after the contract changed the way jobs and hours were assigned. Thompson created a formula to ap- proximate what the bidding would have looked like, and the hours the claimants could have worked under the contract, ab- sent continuing discrimination by Respondent. The same for- mula was utilized for the maintenance employees as well as the drivers and ticket sellers.7 The collective-bargaining agreement called for company sen- iority by job classifications of drivers, ticket sellers/dispatchers, mechanics, and maintenance personnel. It also provided for full-time regular, part-time regular, and on-call/will-call em- ployees. A full-time regular employee is defined as “someone who regularly works 35 hours or more per week.” A part-time regular employee is defined as “someone who regularly works less than 35 hours per week.” An on-call/will-call employee is defined as someone “without any regularly scheduled shifts each week.” The contract also provided a system of scheduling based on a bidding procedure that had not existed before the contract. In each classification, in order of seniority, full-time regular employees bid first and were permitted to bid up to 40 hours per week. Then part-time regular employees, in order of seniority, could bid up to 34 hours per week. The remaining work would be offered to the on-call/will-call employees in order of seniority. In order to reconstruct how much work the claimants would have received, absent discrimination, Thompson had to recon- struct a seniority list broken down by full-time, part-time, and on-call employees for each classification. She used Respon- dent’s documents to complete this task. Pursuant to the con- tract, Respondent had issued forms to employees to designate whether they were full-time, part-time, or on-call/will-call em- ployees. Respondent and the Union agreed on a seniority list based on the employee designations. Thompson used this documentation to place the employees in the appropriate cate- gories. One employee, Kent Bishop, switched from full-time to part-time status during his backpay period. Thompson changed Bishop’s status as of that time. Thompson created a master seniority list of all employees who worked for Respondent at any time from July 1993 until May 28, 1999. She divided the seniority list into classifications of drivers, ticket sellers, mechanics, and maintenance employ- 5 The spelling of Velasco’s name appears as corrected at the hearing. 6 Velasco averaged 34 hours per week in the 16 weeks he worked prior to his unlawful layoff in 1993. 7 The backpay period for the mechanic, Ray Radpay, ended on De- cember 31, 1993. Thus, there is no backpay formula for the mechanic after 1993. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 930 ees. She then subdivided each classification by seniority into full-time, part-time, and on call employees. Thompson first determined the number of hours worked each quarter by each driver, ticket seller, and maintenance employee, and made separate charts for each classification. In each quar- ter, Thompson then took the most senior claimant and deter- mined if any less senior employees in the same classification worked more hours than the claimant. If it appeared that the scheduling had been done according to seniority for that claim- ant and no less senior employee had worked more hours, the claimant received no hours and therefore, no backpay, for that quarter. On the other hand, if a less senior employee had worked more hours than the claimant, Thompson created a poll of available hours comprised of all hours worked by employees with less seniority in that classification during that quarter. Thompson also included in that pool all hours worked that quarter by employees in excess of 520 hours, which was the maximum that full-time employees could have gotten by bid- ding for 40 hours per week as allowed under the contract. Some of the employees, but none of the discriminatees, ex- ceeded 520 hours in numerous quarters. It is the theory of the Regional Director that the excess hours worked by other em- ployees were part of the “on-going discrimination” and, there- fore, these hours were included in the available pool of hours for backpay purposes. In allocating hours to each discriminatee from the pool of available hours, Thompson looked at the hours worked by more senior employees and approximately how seniority would have factored into the bidding process. If the discriminatee was full- time and more senior employees worked the maximum 520 hours, Thompson gave the most senior discriminatee the differ- ence between 520 hours and the hours he or she actually worked. This brought that claimant’s total hours up to 520 hours, assuming there were enough hours in the pool. On the other hand, if more senior full-time employees had worked less than 520 hours in that quarter, the claimant was entitled to addi- tional hours up to the total worked by more senior employees. For example if more senior full-time employees worked only 480 hours in a particular quarter, Thompson assumed that the next senior full-time employee would not have worked more than 479 hours. As a result, discriminatees did not end up with more hours than more senior employees had worked. Thomp- son then repeated this process with the next senior discrimina- tee, identifying if less senior employees had worked more hours. If so, Thompson used the pool of available hours that she created, but with a difference. She subtracted from the pool of available hours those hours that she had credited to more senior discriminatees, and those hours worked by non- discriminatees more senior to the claimant at issue. Under this procedure, the pool of available hours for each discriminatee included only those hours worked in that quarter by employees with less seniority than the particular discriminatee, plus hours worked in excess of the contract guidelines, as discussed above. After allocating hours to full-time discriminatees, Thompson allocated any remaining available hours to part-time employees in each classification by seniority. To do this, she repeated the process discussed above, looking to see if any less senior part- time employees worked more hours than a more senior part- time discriminatee. If that occurred and there were available hours remaining in the pool, Thompson looked to see the num- ber of hours the more senior part-time employee had worked, using the same process she had used with full-time employees. As a result, none of the part-time employees were given more hours each quarter than more senior part-time employees had worked. Thompson continued this process, subtracting used hours from the pool, until no hours were remaining to distribute to the claimants. When there were more hours worked by nondiscriminatee employees, including new hires throughout the backpay period, there were more hours to allocate down to the various claimants with less seniority. In the winter, when business was slow, there were often insufficient hours to allocate to anyone other than the most senior employees in each classification. As a result, in numerous quarters, there were not enough hours to bring all of the full-time employees, let alone part-time em- ployees, up to 520 or 442 hours in a quarter, respectively. In fact, due to the reduction in Respondent’s revenues, there were very few quarters after the collective-bargaining agreement went into effect where there were hours allocated to part-time employee-claimants. The Regional Director contends that it is reasonable to as- sume that the discriminatees would have bid on the maximum number of hours allowed under the contract because the payroll records established that there were many quarters in which employees did work those hours and more. In addition, numer- ous claimants told Thompson that they would have bid up to the maximum number of hours per week if those hours had been offered. E. Gross Backpay Formula for Dispatcher/Operations Coordinator John Mozol Thompson testified that because Mozol was the only em- ployee in his classification, she used the actual hours Mozol worked in late 1992 and early 1993, to come up with his aver- age of 40 hours per week. Mozol had worked an average of 40 hours per week even during the slow period in early 1993. III. APPLICABLE LEGAL PRINCIPALS The applicable principles of law were set forth by Adminis- trative Law Judge Richard J. Linton in Minette Mills, Inc., 316 NLRB 1009 (1995): First, when loss of employment is caused by a viola- tion of the Act, a finding by the Board that an unfair labor practice was committed is presumptive proof that some backpay is owed. Arlington Hotel Co., 287 NLRB 851, 855 (1987), enfd. on point 876 F.2d 678 (8th Cir. 1989). Second, respecting the close of the backpay period, an offer of reinstatement “must be unequivocal, specific, and unconditional.’’ A-1 Schmidlin Plumbing Co., 312 NLRB 191 (1993). Third, in compliance proceedings, the General Counsel bears the burden of proving the amount of gross backpay due. Florida Tile Co., 310 NLRB 609 (1993); Arlington Hotel, Id. In discharging the Government’s burden, the General Counsel has discretion in selecting a formula which will closely approximate the amount due. The Gov- CABLE CAR CHARTERS 931 Government need not find the exact amount due nor adopt a different and equally valid formula which may yield a somewhat different result. NLRB v. Overseas Motors, 818 F.2d 517 (6th Cir. 1987); Kansas City Refined Helium Co., 252 NLRB 1156, 1157 (1980), enfd. 683 F.2d 1296 (10th Cir. 1982). Nevertheless, an Administrative Law Judge need not recommend the General Counsel’s gross backpay formula to the Board when a more accurate one is estab- lished in the record. Frank Mascali Construction, 289 NLRB 1155, 1157 (1988); J.S. Alberici Construction Co., 249 NLRB 751 fn. 3 (1980). Fourth, the burden is on the employer who committed the unfair labor practice to establish facts that reduce the amount due for gross backpay. Florida Tile, supra. Thus, the burden of showing the amount of any interim earnings, or a willful loss of interim earnings, falls to the Respon- dent (Minette here). Arlington Hotel, supra. Although it is the Respondent’s burden to establish a discriminatee’s in- terim earnings, if any, it is the General Counsel’s volun- tary policy to assist in gathering information on this topic and to include that data in the compliance specification. Florida Tile, supra; Arlington Hotel, supra; NLRB Case- handling Manual (Part Three) Compliance sections 10540.1 and 10629.9. As described in a recent case, the voluntary policy is nothing more than an “administrative courtesy.’’ Ryder System, 302 NLRB 608, 613 fn. 7 (1991), enfd. 983 F.2d 705 (6th Cir. 1993). Fifth, even though a discriminatee must attempt to mitigate his or her loss of income, the discriminatee is held only to a reasonable assertion rather than to the highest standard of diligence, and success is not the test of reason- ableness. Florida Tile, supra; Arlington Hotel, supra. In- terim employment means comparable work—substantially equivalent employment. Thus, it is well established that a discriminatee’s obligation to mitigate an employer’s back- pay liability requires only that the discriminatee accept substantially equivalent employment. Arlington Hotel, supra. Sixth, when a discriminatee voluntarily quits interim employment, the burden shifts from the Respondent to the Government to show that the decision to quit was reason- able. Big Three Industrial Gas, 263 NLRB 1189, 1199 (1982); NLRB Casehandling Manual (Part Three) Section 10545.4. (On a single point, respecting concealment of in- terim earnings, the Board subsequently overruled Big Three, supra. American Navigation Co., 268 NLRB 426, 427 (1983). Other points in Big Three were not dis- turbed.) Seventh, a discharge from interim employment, with- out more, does not constitute a willful loss of employment. Ryder System, supra at 610. IV. FINDINGS AND CONCLUSIONS A. The Backpay Period Ended May 1999 In the instant case, in order to decide whether General Coun- sel’s gross backpay formulas are reasonable, I must determine whether Respondent complied with the Board Order prior to May 1999. As stated above, General Counsel’s backpay for- mulas assume that Respondent’s discrimination against the claimants continued after the collective-bargaining agreement went into effect. Respondent, on the other hand, contends that backpay should be tolled once the bargaining agreement went into effect. In its November 21, 1996 decision, the Board adopted the findings and conclusions of Administrative Law Judge William L. Schmidt that Respondent unlawfully: (1) reduced Sheila Lambert’s hours by discontinuing Lambert’s shuttle assign- ments on May 7, 1993; (2) discharged or laid off employees Susan Chan, Porfirio Coyoy, Carl Hovdey, John Mozol, Victo- ria Mazariegos, Gholamreza (Ray) Radpay, Rudy Ortiz, Mavilla Reyes, Andrea Terhune, and Maurico Velasco in June and July 1993; (3) constructively discharged Jonathan Palewicz in July 1993; (4) changed the schedule and reduced the work hours of Kent Bishop, Michael Buckey, Luis Recinos, Kohlee Gleffe, Douglas Horning, Fred McKenzie, Diana Miles, John Modica, Randy Morrison, William Segen, Robert Telles, Wil- liam Trulock, and Michelle Zimmerman beginning on June 15, 1993; and (5) closed its shuttle operations and/or tour opera- tions early, or did not operate them at all, on July 3, 4, 5, 9, 10, and 11, 1993. As a result, the Board Order requires Respondent to offer re- instatement to and make whole, Chan, Coyoy, Hovdey, Mozol, Mazariegos, Radpay, Ortiz, Reyes (now Lillienthal), Terhune, Velasco, and Palewicz. In addition, the Board ordered Respon- dent to make whole Bishop, Buckey, Gleffe, Horning, Lambert, Miles, McKenzie, Modica, Morrison, Recinos, Segen,8 Telles, Trulock, and Zimmerman for the reduction in their hours. Re- spondent was also ordered to make whole all employees who were affected by the early closing of its shuttle and tour service between July 3 and 11, 1993. Finally, the Board ordered Re- spondent to cease and desist from unlawfully reducing its em- ployees work hours. Backpay for Chan, Coyoy, Hovdey, Mozol, Mazariegos, Radpay, Ortiz, Lillienthal, Terhune, Velasco, and Palewicz terminates for each employee when he or she received a valid offer of reinstatement. The backpay period for Bishop, Buckey, Gleffe, Horning, Lambert, Miles, McKenzie, Modica, Morrison, Recinos, Telles, Trulock, and Zimmerman terminates for each employee when the discrimination concluded against him or her. Respondent contends that the discrimination in assignments ended with the new collective-bargaining agreement in Decem- ber 1993. The Regional Director contends that the discrimina- tion continued after the agreement went into effect and that the backpay period did not terminate until May 1999, when Re- spondent made offers of reinstatement to the terminated em- ployees and assured the remaining discriminatees that Respon- dent would follow the collective-bargaining agreement. I view this as a burden of proof issue. It is a well-established rule of evidence that when the existence of a personal relation- ship or state of things is once established by proof, the law presumes its continuance until the contrary is shown or until a different presumption arises from the nature of the subject mat- 8 As stated above, no backpay was sought for Segen who did not co- operate in the compliance investigation. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 932 ter. NLRB v. Piqua Munising Wood Products Co., 109 F.2d 552 (6th Cir. 1940); Shamrock Dairy, Inc., 124 NLRB 494 (1959); and Garment Workers (Saturn & Sedran, Inc.), 136 NLRB 524, 537 (1962). Thus, Respondent has the burden of establishing that the discrimination ceased. First, the evidence shows that employees junior to the dis- criminatees continued to work more hours than the discrimina- tees. Further, the credible testimony of Jonathan Palewicz and Michael Buckey shows that Barn Supervisor Hoa Van contin- ued to discriminate against them in the assignment of hours. Palewicz testified that Hoa Van refused to answer his telephone calls when he attempted to bid for work. She also closed the door when he appeared in person during his designated time slot for bidding. The employees were given a 15-minute time period each week, according to seniority, to bid for work as- signments. Buckey testified that he discovered that Hoa Van was offering work to less senior employees rather than permit- ting Buckey to bid on available assignments. Buckey testified that after he was continually bypassed in 1994 and 1995 he quit his employment with Respondent. Hoa Van, no longer em- ployed by Respondent, did not testify. All Respondent offered were general denials that Respondent never discriminated in its assignment of work to any of its employees. I found such tes- timony unpersuasive. I, therefore, conclude that Respondent has not met its burden of rebutting the presumption that the discrimination continued after December 1993. I find that the backpay period for the unlawful reduction in hours continued until May 1999. B. The Gross Backpay Formulas are Reasonable It is well established that the Board is not required to attain mathematical precision in its formula for determining gross backpay. “Any formula which approximates what discrimina- tees could have earned if they had not been discriminated against is acceptable if it is not unreasonable or arbitrary in the circumstances.” Am-Del-Co, Inc., 234 NLRB 1040, 1042 (1978); Boyer Ford Trucks, 270 NLRB 1133, 1138 (1984). All that is required is that the formula be reasonably designed to arrive at as close an approximation of the amount of backpay due as possible. Rikal West, Inc., 274 NLRB 1136 (1985); Mastell Trailer Corp., 273 NLRB 1190 (1984); and Master Slack, 269 NLRB 106, 109 (1984). See also NLRB v. Brown & Root, Inc., 311 F.2d 447, 452 (8th Cir. 1963). The backpay formula for the maintenance employees for the year 1993 appears reasonable. In the underlying decision, the Board found that Hoa and Ty Van and other nonbargaining unit individuals cleaned the cable cars in 1993 after the maintenance employees were unlawfully laid off. Respondent failed to show in either the underlying case or the instant hearing how many hours were involved. Further, the amounts were not accounted for in Respondent’s payroll records. Thus, I find it reasonable to utilize the 1992 hours worked by the claimants for determin- ing backpay. It was Respondent’s wrongdoing and Respon- dent’s failure to properly record the maintenance hours worked in 1993, which made a more accurate formula impossible. In the underlying case, the Board found that the maintenance employees also worked for Respondent’s owner for his other business. The employees were paid by Respondent for this work. Respondent’s owner admitted that after 1993, he contin- ued the practice of having Respondent’s maintenance employ- ees work for his outside businesses. I find that the backpay formula properly includes hours worked by maintenance em- ployees, paid by Respondent, for these outside businesses. Respondent raised as a defense that the backpay formula was unreasonable because Respondent did not have any full-time employees. Rather, Respondent argued that all its employees were will-call/on-call employees. Respondent’s documents establish that the company did, in fact, have full-time and part- time employees as well as on call employees. The collective- bargaining agreement establishes these three categories. Fur- ther, Respondent’s records disclose forms in which the employ- ees were permitted to designate themselves in one of these three categories. In addition there are seniority lists for these three categories agreed on by the Union and Respondent. Fi- nally, the record contains letters sent by Respondent to the Re- gional Office admitting the existence of the three categories of employees. Accordingly, I find no merit to this defense. Respondent raised the defense that the backpay formulas failed to take into account the reduction in business caused by the closure of the shuttle in July 1993. Specifically, Respon- dent asserts that the shuttle was eliminated at that time except for a few unsuccessful pilot programs. Respondent also argues that its tour business was closed from June 4, 1994, until the end of December 1994, when it was revived albeit on a se- verely reduced basis. In the underlying case, the Board found that Respondent terminated its shuttle on July 23, 1993. However, the Board also found that Respondent operated a shuttle on an irregular basis in November and December 1993, and then resumed the regular shuttle after the collective-bargaining agreement was signed. In the instant case, Respondent’s business records establish that the shuttle continued to operate until September 1997. In addition, three witnesses testified to seeing the shuttle operate between 1994 and 1997. Respondent further asserted that its tours did not operate for about 6 months after it lost its lease at pier 41. However, Ar- nold Gridley, Respondent’s president, admitted that the Com- pany continued the tours on a reduced basis from Fisherman’s Wharf. Respondent’s records support this testimony. Most important, I find that the backpay formulas took into account the decrease in Respondent’s revenues. It is undis- puted that business revenues declined after the shuttle was closed in July 1993, and again in June 1994 when Respondent lost its lease at pier 41. However, those operations did not cease until January 1998. The backpay formulas took into ac- count the reduction in the shuttle and tour business. The back- pay formula takes into account the reduced hours actually worked in 1993 as well as the cyclical nature of the business. The backpay formulas for the periods after the collective- bargaining agreement went into effect are based on the actual hours worked by all bargaining unit employees. Thus, fewer hours were attributed to the discriminatees based on the fact that there were fewer shuttles and tours after July 1993. Similarly, the backpay formulas took into account the sea- sonality of the business. Typically, the summer season is CABLE CAR CHARTERS 933 among the busiest periods for Respondent’s business. During the summer months, Respondent supplemented its work force with seasonal drivers and ticket sellers. A large part of the backpay period in 1993 included the busy season. Starting in 1994, the backpay was based on the actual hours worked by bargaining unit employees. Thus, I find that the backpay for- mulas did in fact account for the seasonality of the business. Respondent raised as a defense an allegation that the drivers could not have worked all of the hours allocated to them in the compliance specification. Respondent claims that many of the hours worked by the drivers represented conflicting multi-car promotions that required multiple drivers. Thus, Respondent argues that if a discriminatee was already driving, he or she could not work these hours as well. In support of this defense, Respondent provided summaries showing the number of single- car and multiple car promotions each month. However, I find Respondent’s evidence insufficient to establish that any hours driven by on-call/will-call employees could not have been worked by the part-time or full-time drivers in the bargaining unit. Respondent never established the numbers of hours of single-car and multiple car events were in conflict, what tours and shuttles were in conflict, or when each discriminatee was unable to work the allocated hours because of such conflict. Given the condition of Respondent’s records, it is impossible to reconstruct the impact of multicar promotions on the bidding schedule. In these circumstances, the uncertainties must be resolved against Respondent as the wrongdoer. C. Deductions from Backpay Respondent raised the defense that the discriminatees are not entitled to the hours allocated to them because: (1) they were unavailable to work that many hours in the past; (2) they pre- ferred not to work certain types of promotions; (3) they turned down jobs; and (4) customers made requests that certain drivers be sent or not sent. As indicated above, Respondent’s business is seasonal. The summer season is among the busiest periods for Respondent’s business. During the summer months, Respondent supple- mented its work force with seasonal drivers and ticket sellers. A large part of the backpay period in 1993 included the busy season. It would not be fair nor reasonable to limit the hours of a discriminatee to those worked during the slower months of 1993. Moreover, Respondent never established that any of the discriminatees would not or could not work the hours allocated to them by the General Counsel’s compliance specification. Respondent presented some evidence that some of the back- pay claimants turned down work, were not available for work, or preferred not to work certain promotions, e.g., bar hops. I found such evidence insufficient to change the allocated hours. Respondent presented only isolated incidents that discrimina- tees turned down work. There was no evidence that backpay should have been tolled. Furthermore, Respondent did not show that the employees could not have worked their full al- lotment of hours during other days of the week. Under the collective-bargaining agreement, Respondent was obligated to offer available work to employees based on seniority, even if the employee had expressed a preference not to work certain promotions. Respondent claimed that certain work was not available to the discriminatees based on individual requests of customers. Only 5 percent of Respondent’s promotions included such a request. Most important, Respondent failed to establish how these facts affected any of the discriminatees. As stated above, the burden is on the employer who commit- ted the unfair labor practice to establish facts that reduce the amount due for gross backpay. Florida Tile, supra. Thus, the burden of showing the amount of any interim earnings, or a willful loss of interim earnings, falls to the Respondent. Ar- lington Hotel, supra. Although it is the Respondent’s burden to establish a discriminatee’s interim earnings, if any, it is the General Counsel’s voluntary policy to assist in gathering in- formation on this topic and to include that data in the compli- ance specification. Florida Tile, supra; Arlington Hotel, supra; NLRB Casehandling Manual (Part Three) Compliance Secs. 10540.1 and 10629.9. As described in a recent case, the volun- tary policy is nothing more than an “administrative courtesy.’’ Ryder System, 302 NLRB 608, 613 fn. 7 (1991), enfd. 983 F.2d 705 (6th Cir. 1993). Even though a discriminatee must attempt to mitigate his or her loss of income, the discriminatee is held only to a reasonable assertion rather than to the highest stan- dard of diligence, and success is not the test of reasonableness. Florida Tile, supra; Arlington Hotel, supra. Interim em- ployment means comparable work—substantially equivalent employment. Thus, it is well established that a discriminatee’s obligation to mitigate an employer’s backpay liability requires only that the discriminatee accept substantially equivalent em- ployment. Arlington Hotel, supra. When a discriminatee vol- untarily quits interim employment, the burden shifts from the Respondent to the Government to show that the decision to quit was reasonable. Big Three Industrial Gas, 263 NLRB 1189, 1199 (1982); NLRB Casehandling Manual (Part Three) Section 10545.4. (On a single point, respecting concealment of interim earnings, the Board subsequently overruled Big Three, supra. American Navigation Co., 268 NLRB 426, 427 (1983). Other points in Big Three were not disturbed.) Seventh, a discharge from interim employment, without more, does not constitute a willful loss of employment. Ryder System, supra at 610. Employees Palewicz, Mazariergos, and Lillienthal held sec- ond jobs while working for Respondent before and during the unlawful actions. These employees continued to work their second jobs through their backpay periods, but without in- creased hours. Thus, the income from their second jobs is not treated as interim earnings. See U.S. Telefactors Corp., 300 NLRB 720, 722 (1990). Respondent claimed that many of the discriminatees failed to report interim earnings. However, Respondent failed to pro- duce evidence to support this argument. Respondent argued that Miles worked 2 days a week in Sacramento, California. However, Miles’ social security earnings report showed no such income. Respondent offered no evidence to establish that Miles or any other backpay claimant did not report interim earnings. D. Defenses as to Certain Discriminatees Respondent claims that driver Diana Miles is not owed any backpay because she had accidents, had another job in Sacra- DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 934 mento, California, and turned down certain promotional work. Miles’ backpay was tolled on March 1, 1999, the date of her termination. The legality of that termination is the subject of an independent contempt proceeding. In the instant case, I deal with backpay due to Miles only until March 1, 1999. First, Arnold Gridley, Respondent’s president, admitted that Respondent never denied Miles an assignment because of her accidents. Second, Respondent’s evidence never established that Miles turned down more than an occasional job over the backpay period of approximately 4-1/2 years. Third, Respon- dent offered no evidence that Miles was unavailable to work because of an alleged job in Sacramento. As stated above, the existence of a job in Sacramento was not established. The compliance specification seeks backpay for driver Robert Telles only for the second quarter of 1993 and the third quarter of 1995. Respondent argues that it did not assign Telles to work after December 1994 because his commercial license expired in 1995. I cannot credit this defense. First, Gridley admitted that Respondent did not discover until March 1998 that Telles had not renewed his commercial license. Respon- dent’s assignment of work to Telles in 1995 could not have been influenced by knowledge that it obtained in 1998. Second, to drive a motorized cable car for Respondent a driver needed both a class B driver’s license, which was good for 4 years, and a medical certificate, which was good for 2 years. Telles’ driver’s license and medical certificate indicate that he had both in 1995 and was qualified to drive cable cars that year. Furthermore, if Respondent had not unlawfully re- duced Telles’ hours, he would have been notified when his renewal was up, and Respondent would have paid for his re- quired medical examination. Respondent’s usual practice was to notify drivers that it was time for another medical examina- tion. Respondent failed to explain the failure to notify Telles of his medical examination. Respondent contends that it does not owe backpay to driver William Trulock. Trulock’s backpay was tolled on September 18, 1998, the date of his termination, which is the subject of an independent contempt proceeding. This case only deals with backpay due prior to that date. Respondent contends that it does not owe backpay to Trulock due to driving accidents and customer complaints, Trulock’s medical condition, and his unavailability due to vacation travel. General Counsel admitted that Trulock was unavailable to work due to illness during the first half of 1994, a period for which no backpay is claimed. Gridley testified that on 15 occa- sions during Trulock’s 9 years of employment, Trulock missed all or part of an assigned shift due to medical related reasons. Respondent did not establish how many hours were involved in such incidents nor did Respondent establish when these inci- dents occurred. Further, Respondent failed to establish how many hours of work Trulock missed after the second quarter of 1994. Respondent’s records reveal that its medical examiner qualified Trulock to drive each year during the backpay period. Gridley testified that Trulock was not assigned work because of accidents and customer complaints. Respondent, however, failed to provide evidence to support this defense. While Grid- ley testified that Trulock was denied certain difficult assign- ments, Trulock was assigned other easier assignments. Accord- ingly, I find that Respondent has not met its burden of showing that Trulock’s backpay should be reduced. General Counsel deducted from backpay those periods when Trulock was on vacation. For the period between August 24, and September 19, 1996, Trulock was scheduled to be on vaca- tion. However, the records show that Trulock canceled that vacation and worked during that time period. Again, I find Respondent has failed to establish that Trulock’s backpay should be reduced. Driver Jonathan Palewicz testified in the underlying unfair labor practice case that he was regularly scheduled to work for Respondent on Wednesdays and Thursdays driving the shuttle, and that those were the only days that he would commit to in advance. Even though, Palewicz had another full-time job, he worked a large number of hours for Respondent in addition to his Wednesday and Thursday driving. At the instant hearing, Palewicz testified that he could only commit himself to driving on Wednesdays and Thursdays because those were his regular days off from his full-time job. However, he testified that he often drove promotional jobs for Respondent on days that he also worked his regular job. Respondent’s records support Palewicz’ testimony. In 1992, Palewicz often worked 5 or 6 days a week for Respondent in addition to his full-time job. In 1992, he averaged 34 hours a week for Respondent. While he worked less in the slow season, in the busy season of 1992, Palewicz worked 40 to 60 hours a week for Respondent in addi- tion to his full-time job. Thus, I find that Respondent has failed to establish that Palewicz would have worked no more than 2 days per week or that Palewicz could not have worked the hours allocated to him by the backpay formula. Respondent contends that it terminated driver Sheila Lam- bert in 1995. However, Gridley admitted that Respondent per- mitted Lambert to continue to drive after her alleged termina- tion. Based on the documentary evidence I find that Lambert continued in Respondent’s employ until 1999. Under the ac- cepted gross backpay formula, Lambert is entitled to backpay until the fourth quarter of 1998. There would not have been sufficient hours in 1999, for Lambert to be allocated work hours in order to receive gross backpay. Respondent claims that it does not owe backpay to ticket seller Fred McKenzie because he was not available to work due to illness. Backpay for McKenzie was tolled on January 9, 1994, when he went out on disability and ceased working for Respondent. Respondent failed to meet its burden of establish- ing when McKenzie was unavailable for work prior to January 1994. Respondent claims that it does not owe backpay to ticket seller Kohlee Gleffe because Gleffe was a student. Gridley testified that Gleffe was a student the whole time that she worked for Respondent. Gleffe worked 40 hours per week for Respondent during the summer and part time 5 days a week during the school year. As Gleffe was a full-time student be- fore the discrimination, her full-time attendance at school did not affect her availability for work. See J. L. Holtzendorff De- tective Agency, 206 NLRB 483, 484–485 (1973). General Counsel was unable to locate maintenance employee Rudy Galindo-Ortiz. Backpay was tolled for Ortiz on January 1, 1998, the date of his reinstatement. General Counsel esti- CABLE CAR CHARTERS 935 mated Ortiz’ interim earnings at 75 percent of his gross back- pay. Backpay should be paid to the Regional Director to be held in escrow for a period not to exceed 1 year from either Respondent’s compliance or to the date the Board’s Supple- mental Decision and Order becomes final, including enforce- ment, whichever is later. See Starlite Cutting, Inc., 284 NLRB 620 (1987). If Ortiz is not located within that time period, his backpay shall be returned to Respondent. If Ortiz is located within that time period, interim earnings and other deductions to gross backpay can be resolved informally or through a sup- plemental compliance proceeding, if necessary, and the excess, if any, returned to Respondent. General Counsel admits that mechanic Gholamreza (Ray) Radpay was tolled on December 31, 1993. Radpay’s job would have ceased to exist because work would not have been avail- able to him under the bidding provisions of the collective- bargaining agreement. Respondent argues that Ray Radpay is not entitled to any backpay. Respondent argues that Radpay was hired in 1992 because more senior mechanics were on vacation. Two mechanics were allegedly on extended vacations in 1992. However, Respon- dent failed to establish when and how long the more senior mechanics were on vacation. In the first part of 1993, Radpay worked more hours than at least one of the more senior me- chanics. Under these circumstances, I find it reasonable to assume that Radpay would have worked the same proportion of mechanic’s hours in the second and third quarter of 1993 as he had worked in 1992. Dispatcher/operations coordinator John Mozol was unlaw- fully terminated on June 12 or 13, 1993, when Respondent refused to allow him to return from disability. Mozol appar- ently remained on disability and backpay is not claimed to commence until the second quarter of 1995, when Mozol was able to return to work. While Mozol was on disability, he was not replaced. Rather, other employees and managers performed his duties. Backpay for Mozol was tolled in January 1998, when the tours and ticket sellers were eliminated. Respondent contends that it had no need for Mozol after July 23, 1993. Gridley testified that when the shuttle closed in July 1993, and again in 1994 when the tour business was reduced, there no longer was any need for Mozol’s position and he was not replaced. Gridley also testified that there was no other job in the company that Mozol could have filled. The Board found that Mozol served as a conduit for the transmission of the driver assignments made by the supervisors, and regularly accessed the schedule on the computer. In the underlying case, Mozol testified that his duties included input- ting the drivers’ and tickets sellers’ tour schedules that Hoa Van filled out, and the changes that were sent over from the office, and then printing them out. Mozol’s other duties in- cluded keeping handwritten and computer records of schedul- ing, vehicle maintenance, safety reports, sales and lease re- cords, customer service issues, maintenance of Department of Transportation and OSHA files, and answering the phones. Gridley testified that even when Hoa and Ty Van were in the office, some of Mozol’s other daily job duties were to check the faxes from the office, check to see what cable cars had broken down, make reports on needed mechanical work, make sure that needed parts were purchased, and sometimes pick up the parts himself. Gridley also testified that Mozol’s job duties included filling in for Hoa and Ty Van when they were out of the barn, either during part of the day or when they were away on their days off or vacation. Mozol’s duties on these occasions were to make sure that the tours, shuttles, and promotions ran on time. His duties also included putting the paperwork together, coordinat- ing with the drivers, making sure late drivers were going to show up, and helping to find additional drivers for absent driv- ers or when a cable car broke down and needed to be replaced. The General Counsel showed that the shuttle was resumed on more than an experimental basis from 1994 through 1997. The tour business continued even after the lease at pier 41 was lost. In addition, as discussed above, prior to January 1998, Respondent continued to hire new drivers and ticket sellers. The coordination of these employees’ schedules, and Mozol’s other job duties needed to be done. Gridley admitted that Mo- zol’s work, albeit on a reduced scale, still existed. This work was done by the Vans, the office staff, drivers, and the mechan- ics. Respondent did not establish how much of Mozol’s job was reduced because of the reduction in business. I view this as a burden of proof issue. Work previously done by Mozol, a discriminatee was assigned to other employees and managers. The Act does not require Respondent to hire or employ more employees than necessary. However, having unlawfully terminated Mozol, the burden was on Respondent to show when Mozol would have been lawfully laid off. I find Respondent has not met this burden. Thus, I find Mozol would have continued in Respondent’s employ until January 1998, when Respondent discontinued its tours and discharged its ticket sellers. On these findings of fact and conclusions of law, and on the entire record, I issue the following recommended9 SUPPLEMENTAL ORDER IT IS ORDERED that Respondent, Cable Car Advertisers, Inc., d/b/a Cable Car Charters, forthwith pay to each of the following persons backpay in the amounts set opposite his name, plus interest computed in the manner prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987), as required by the Board’s Order of January 22, 1992: Diana Miles $15,459.86 Kent Bishop 3,422.26 Robert Telles 5,092.31 William Trulock 26,118.71 Luis Recinos, Jr. 2,363.26 Douglas Horning 3,869.07 Carl Hovdey 397.75 Jon Palewicz 2,717.47 Sheila Lambert 2,055.00 9 All outstanding motions inconsistent with this order are denied. In the event no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusion, and recom- mended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all proposes. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 936 Michele Zimmerman 2,672.62 Fred McKenzie 5,905.73 Kohlee Gleffe 3,167.90 Michael Buckey 8,113.00 Randy Morrison 2,617.44 John Modica 1,903.65 Andrea Terhune 317.36 Susan Chan 249.15 Porfirio Coyoy 14,464.40 Rudy Galindo Ortiz10 1,970.63 10 Backpay for Rudy Galindo Ortiz should be paid to the Regional Director to be held in escrow for a period not to exceed 1 year from either Respondent’s compliance or to the date the Board’s Supplemen- tal Decision and Order becomes final, including enforcement, which- Victoria Mazariegos 1,455.00 Mavillia Lillienthal 1,663.75 Mauricio Velasco 1,779.04 Gholamreza Radpay 7,985.25 John Mozol 15,718.45 TOTAL NET BACKPAY $141,479.06 ever is later. See Starlite Cutting, Inc., 284 NLRB 620 (1987). If Ortiz is not located within that time period, his backpay shall be returned to Respondent. If Ortiz is located within that time period, interim earn- ings and other deductions to gross backpay can be resolved informally or through a supplemental compliance proceeding, if necessary, and the excess, if any, returned to Respondent.